Transparency in the Creation of New Ways to Sue

It may be surprising but, on occasion, courts create new causes of action to sue based on statutes, regulations, or other legislation. These rights are “implied” by courts based on their view of state legislative intent in enacting the legislation; they are not based on explicit language in the statute. Lawsuits resulting from this practice are sometimes referred to as “implied causes of action.” The principles for when courts will or will not create these implied causes of action are vague and uncertain. The result is that defendants may face unexpected liability. In addition, plaintiffs waste time and money litigating claims that courts may later find do not exist. Courts spend substantial judicial resources considering such issues. Whether there is a private right to sue may also have unanticipated implications for government policymaking and enforcement of a law.

Furthermore, in the Restatement of Torts, Third, judges are encouraged to imply from statutes new duties of care, or legal relationships requiring an individual or entity to act to reduce harm to those to whom the duty is owed, as a hired doctor would have to a patient. Of particular importance, though, a recognition of a new duty of care creates new liability, thus again giving courts the authority to create new rights to sue.

The Transparency in Lawsuits Protection Act provides a commonsense way of infusing greater clarity in the legislative process; namely, by requiring that state legislatures be explicit about new avenues to sue, and prohibiting courts from creating new claims on their own without an explicit expression of legislative intent. The model act recognizes that whether a law creates a private right of action or a new duty of care is a significant public policy decision that should be reached by the legislature after close consideration and deliberation.